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Analysis

Time to Deal with the Filibuster

The procedural maneuver, long used by Senate minorities to block civil rights legislation, is now poised to stop democracy reforms supported by broad majorities.

January 26, 2021
capitol
mbell

After a delay, Sens. Charles Schu­mer and Mitch McCon­nell have finally agreed on a plan for how the Senate will run with its slim Demo­cratic major­ity. What held them up was McCon­nell’s insist­ence that the Demo­crats forswear fili­buster reform for two years. 

That’s high-level chutzpah, of course. McCon­nell himself ended the fili­buster for Supreme Court nomin­ees in 2017, so he could swiftly add two new conser­vat­ive justices. Previ­ously, Demo­crats had done the same for other nomin­ees. Changes to Senate rules — even abol­ish­ing the fili­buster — is not only some­thing that has been done, but done recently, and by both sides. 

All this preserves for another day the ques­tion of what to do with the broken U.S. Senate. 

It’s import­ant to under­stand that the current status quo — that 60 votes rather than a simple major­ity are needed for everything, from major legis­la­tion to naming a post office — is not required, time-tested, or wise. It’s a relat­ively new, bad thing. And it gives extraordin­ary, destruct­ive power to minor­it­ies to thwart needed action. 

Many mistakenly assume the fili­buster origin­ated in the Consti­tu­tion. In fact, the framers considered and rejec­ted the idea of requir­ing super­ma­jor­it­ies to pass legis­la­tion. It was used through­out the 20th century espe­cially as a way to thwart civil rights legis­la­tion. Then, as parties grew more polar­ized, it became used to block… well, almost anything. 

At the Bren­nan Center, we have argued it’s time to abol­ish the fili­buster alto­gether. Should the Senate slow things down, find a way to delib­er­ate and cogit­ate over legis­la­tion? Sure. But today’s fili­buster abuse has made that a fanci­ful notion. 

As Bren­nan Center Senior Fellow Caroline Fredrick­son writes, “The fili­buster has made the Senate a grave­yard of new ideas.” It does­n’t spur cooper­a­tion or cent­rist deal­mak­ing. It just lets a frac­tion of the minor­ity party stop anything from happen­ing. We saw it, for example, after the Sandy Hook school massacre, when a strong major­ity of the Senate (and 9 out of 10 voters) suppor­ted univer­sal back­ground checks for gun purchases, but the fili­buster doomed action on the bipar­tisan Manchin-Toomey bill.  

As framers includ­ing James Madison and Alex­an­der Hamilton were well aware, the Senate itself chal­lenges major­ity rule. They only agreed to giving states equal repres­ent­a­tion to stop small states such as Delaware from break­ing off and making milit­ary alli­ances with European powers.

The imbal­ance is even worse now. Cali­for­ni­a’s 39 million resid­ents get two senat­ors in Wash­ing­ton — the same as Wyom­ing’s 579,000. That has stark racial implic­a­tions: in Wyom­ing resid­ents are 16 percent people of color, while in Cali­for­nia they hold a wide major­ity. As the coun­try changes, its insti­tu­tions must find a way to change with them. A perman­ent, unbreak­able fili­buster makes that even harder. (And don’t get us star­ted on the Elect­oral College.) 

Former Pres­id­ent Barack Obama was right when, at Rep. John Lewis’s funeral, he called the fili­buster a “Jim Crow relic.” It played a shame­ful role in block­ing Black progress six decades ago. We must make sure it does not reprise that role in today’s struggles for voting rights, demo­cracy reform, crim­inal justice reform, and the other steps the coun­try needs.